Refugee Legal Centre, R (on the application of) v Secretary of State for the Home Department

1. LORD JUSTICE BROOKE: This is a matter which came before me last week, when I made a protective costs order protecting the claimants, the Refugee Legal Centre, from any potential order for costs in relation to the application which was listed for hearing before the court this morning. I mention this because I gave an oral judgment in that case, which, like the present judgment, can certainly have any normal bar on the citation of a judgment of this kind lifted. That judgment sets out the particular circumstances of this particular appeal and this particular application. Anybody who wishes to know the nature of the order we are making today would be wise to read that judgment to see the peculiar nature of the problem that the court faced. 2. It is noteworthy that, in this matter, the lawyers for the Refugee Legal Centre have been acting pro bono throughout, so that the nature of the order that we are making today is not an order made in a case in which the appellants would be seeking an order for costs in their favour if they won, but seeking to be protected from such an order if they lost. 3. The Secretary of State has consented to the order being made today in relation to the substantive appeal, which is due to be heard in the first week of October, and the court is content to make the order. But I must make it completely clear that two members of the court have really not been involved in this matter at all. They were told yesterday that there was to be a consent order, so that this cannot in any way be regarded as a considered order of the Court of Appeal following full argument on the issues in the case. On the other hand, I am is satisfied that it is appropriate to make a consent order on this occasion. 4. Order: Consent order made to the effect that there will no be order for costs at the hearing of the substantive appeal. At the request of the appellants, the court directed that the list of Claimants' Authorities should be annexed as a Schedule to this judgment. ___________________________________________ CLAIMANT’S AUTHORITIES ___________________________________________ Authority Relevance 0 CPAG [1999] 1 WLR 347 High Court pre-CPR decision on pre-emptive costs 1 Law Commission No. 226 (extract) 1994 Report on Administrative law procedure 2 Australian Law Reform Commission (extract) 1995 Australian report on cost allocation 3 Access to Justice Report (extract) 1996 Report on CPR reforms 4 “Pre-Emptive Costs Orders” Scott [2001] CLQ 20, 298 Commentary on pre-emptive costs 5 “Whose Cost the Public Interest?” Chakrabarti & ors [2003] PL 697 Commentary on pre-emptive costs 6 “Pre-emptive Costs Orders” Markus & Westgate [1998] JR 76 Commentary on pre-emptive costs 7 “Environmental Litigation – A Way Through The Maze?” Carnwath [1999] J.Env.L. Vol. 11 No. 1, 3 Costs in environmental litigation – see section 5 8 Environmental Justice Project Report (extract) 2004 & Coalition for Access to Justice for the Env. Briefing Costs in environmental context 9 “Taking a Case to the E Ct HR” Leach (Blackstone) Costs in the E Ct HR 10 “Funding Public Litigation” Peltz & Froese (2001) Canadian article on public interest costs 11 Blackburn [1973] 1 QB 241 Example of no costs order – see 265B 12 Evans [1982] 1 WLR 1155 Example of no-costs condition on leave to appeal – see 1164C 13 Davies [1987] 1 WLR 1136 Recognising prospective costs jurisdiction 14 New Zealand Maori Council [1994] 1 AC 466 Example of no costs order – see 485G-H 15 McDonald v Horn [1985] ICR 685 Pre-emptive costs in pensions context 16 WDM [1995] 1 WLR 385 Standing & public interest – see 395H-396A 17 Bolton MDC [1995] 1 WLR 1176 Multiple sets of costs 18 Finnie (1997) 29 HLR 658 Cross-undertaking in damages – see 661 19 Shelter [1997] COD 1-77, 49 No order for costs 20 Dixon [1998] Env LR 111 Standing & public interest 21 Dyfed Powys Police (Unrep. 9 Nov 1998, HC) Costs and licensing appeals 22 O’Byrne [2000] CP Rep 9 Costs and joinder, see pp 5-6 23 Village Residents Association Ltd [2000] 4 IR 321 Irish pre-emptive costs, see pp 6-9 24 Axa Equity [2000] Westlaw transcript 1720417 Pre-emptive costs and pension schemes – see p. 11 25 CND [2002] EWHC 2712 Admin Pre-emptive cost-capping order – see para 6 26 Munjaz [2003] 3 WLR 1505 Issue-based costs & public interest – para 89 27 C v FC [2004] 1 FLR 362 Costs in children cases 28 Mount Cook [2003] EWCA Civ 1346 Costs and permission hearings – see paras 76-77 29 Davies [2004] 3 All 543 Costs and coroners 30 King [2004] EWCA Civ 613 Cost capping orders – see paras 78-109 31 Hashtroodi [2004] 3 All ER 530 CPR as a new era – see paras 12-16 32 Morris [2004] EWHC 1199 Admin Test case – see paras 15-23 33 Okanagan Indian Band (2003) 114 CCR 2d 108 Interim costs in Canadian public interest cases